United States of America et al v. United States Steel Corporation

Filing 135

OPINION AND ORDER The 133 MOTION to Enter Proposed Consent Decree is GRANTED and via this Opinion and Order and Judge Philip P Simon's signature on page 66 of the Proposed Consent Decree, the Consent Decree is hereby approved, signed, and entered as a final judgment in this matter. ***Civil Case Terminated. Signed by Judge Philip P Simon on 3/30/17. (Attachments: # 1 CONSENT DECREE)(kjp) Modified docket text on 3/30/2017 (kjp).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA, STATE OF
INDIANA, MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
STATE OF ILLINOIS
Plaintiffs,
v.
UNITED STATES STEEL CORPORATION,
Defendant.

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) CAUSE NO. 2:12-CV-304-PPS-APR
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OPINION AND ORDER
The parties to this long running environmental dispute seek the Court’s approval
of a proposed consent decree that would end this litigation. [See DE 125-1; DE133.] The
Plaintiffs—the Environmental Protection Agency, the Michigan Department of
Environmental Quality, the State of Indiana, and the State of Illinois—all agree with the
proposed disposition, as does the defendant, United States Steel Corporation.
First, some background. U.S. Steel is headquartered in Pittsburgh and is a major
global iron and steel producer that manufactures steel sheet and tubular products. The
Plaintiffs filed this action on August 1, 2012, alleging that U.S. Steel violated the Clean
Air Act by exceeding opacity limits in the Clean Air Act’s National Emissions Standards
for Hazardous Air Pollutants (“NESHAP”) regulation, relevant State Implementation
Plans, and/or U.S. Steel’s permits issued under Title V of the Act. Other claims alleged
violations of operations requirements in applicable Operations and Maintenance Plans,

the NESHAP regulations, relevant State Implementation Plans, and U.S. Steel’s Title V
Permits. [DE 1.] In the Summer of 2014, after almost two years of hard-fought litigation,
the Court granted the parties’ request for time to allow settlement discussions to take
place. [DE 93.]
After over two years of settlement discussions, and with the helpful assistance of
Magistrate Judge Andrew Rodovich, a proposed settlement was reached and a Notice
of Lodging of Consent Decree was filed on November 11, 2016. [DE 125.] The proposed
Consent Decree resolves the allegations in the Complaint filed under the Clean Air Act
and in the notices of violations referenced in the proposed Consent Decree. Consistent
with Department of Justice regulations (28 C.F.R. § 50.7), the government invited public
comment on the proposed Consent Decree for a period of thirty days before seeking
judicial approval. [DE 125 at 1.] The proposed Consent Decree was noticed in the
Federal Register. See 81 Fed. Reg. 86,014, 2016 WL 6947816 (Nov. 29, 2016). Copies of the
proposed Consent Decree were made available by mail and on a Department of Justice
Website: https://www.justice.gov/enrd/consent-decrees. Id. On December 29, 2016,
comments were received from three citizen groups in Michigan—the Detroiters
Working for Environmental Justice, the Great Lakes Environmental Law Center, and
the Southwest Detroit Environmental Vision—and Michigan State Representative
Stephanie Chang. [See DE 134-1; DE 134-2.] The government filed responses to those
comments along with its motion. [See DE 134-3; see also DE 134-4; DE 134-5.]

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Under the proposed Consent Decree, U. S. Steel agrees to 1) undertake measures
to reduce pollution at its three Midwest iron and steel manufacturing plants in Gary,
Indiana (Gary Works Facility), Ecorse, Michigan (Great Lakes Works Facility), and
Granite City, Illinois (Granite City Works Facility); 2) perform seven Supplemental
Environmental Projects at a total cost of $1.9 million to protect human health and the
environment in the communities affected by U. S. Steel’s pollution; 3) expend at least
$800,000 for a project to dispose of PCB-contaminated transformers at its Gary Works
and Great Lakes Works Facilities; and 4) pay a $2.2 million civil penalty. [See DE 125-1.]
Pursuant the proposed Consent Decree, the Court will retain jurisdiction over this case
until termination of the Consent Decree for the purposes of resolving disputes under
the Consent Decree or entering orders modifying the Consent Decree pursuant to
Sections XIV and XX of the Consent Decree, or effectuating or enforcing compliance
with the terms of the Consent Decree. [DE 125-1 at 63.]
The Court has considerable discretion in determining whether settlement is fair
and reasonable. Madison Cnty. Jail Inmates v. Thompson, 773 F.2d 834, 845 (7th Cir. 1985).
“A court’s review of a consent decree is not a mechanical rubberstamp, but neither is it
a de novo review.” United States v. Bayer Healthcare, LLC., No. 2:07-CV-304, 2007 WL
4224238, at *3 (N.D. Ind. Nov. 28, 2007) (citing United States v. Cannons Eng’g Corp., 899
F.2d 79, 84 (1st Cir. 1990)). Instead, the court gives deference both to the agency and its
work in fashioning the decree with the agreement of the other parties, as well as the
federal policy encouraging settlement. United States. v. George A. Whiting Paper Co., 644
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F.3d 368, 372 (7th Cir. 2011). This especially is the case when there is transparency in
negotiations that involved numerous parties with sharply conflicting interests
represented by knowledgeable lawyers who have hammered out an agreement at arm’s
length. Cannons Eng’g Corp., 899 F.2d at 84. “The relevant standard, after all, is not
whether the settlement is one which the court itself might have fashioned, or considers
as ideal.” Id. Rather, the consent decree must be fair, reasonable, and faithful to the
objectives of the governing statute. See George A. Whiting Paper Co., 644 F.3d at 372.
It is through this lens that I review the proposed Consent Decree and the related
filings, including the comments submitted by three Michigan citizen groups and State
Representative Chang and the government’s responses to those comments. I find that
the proposed Consent Decree is procedurally and substantively fair. Looking at its
procedural history, the proposed Consent Decree is the result of several years of armslength negotiations that were conducted in manifest good-faith. Furthermore, the
proposed Consent Decree was made available for public comment and the comments
that were received were addressed in turn by the government.
The proposed Consent Decree is substantively fair because it holds U.S. Steel
accountable for its alleged non-compliance at the three facilities at issue. The proposed
Consent Decree contains a comprehensive array of injunctive relief that will address the
fundamental causes of U. S. Steel’s alleged violations and will help to prevent similar
non-compliance at the three facilities in the future. The proposed Consent Decree also
contains provisions for a substantial civil penalty for U. S. Steel’s past alleged violations;
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provisions for seven SEPs to further reduce air pollution in the surrounding areas of the
three plants, benefitting the communities in or near those areas most affected by U. S.
Steel’s pollution; and provisions for a project intended to reduce the environmental
hazards (namely, PCBs) present in transformers at U. S. Steel’s facilities. Further, under
the proposed Consent Decree, U. S. Steel is subject to a stringent set of stipulated
penalties that hold it accountable for its future performance. In addition, the settlement
avoids the need for litigation, which in environmental cases tends to be complex,
lengthy, and expensive for all parties. There is no opposition to the settlement among
the affected parties, and the opinion of their competent counsel is in favor of the
proposed Consent Decree. In sum, all known information points to a consent decree
with terms that are substantively fair.
I find that the proposed Consent Decree also is reasonable. The reasonableness
requirement is “a multifaceted exercise” that tends to focus on the agreement’s
effectiveness, the extent to which it satisfactorily compensates the public for the actual
(and anticipated) costs of remedial and response measures, and the relative strengths of
the parties’ litigating positions. Cannons Eng’g Corps, 899 F.2d at 89-90. The proposed
Consent Decree appears to be reasonable for many of the reasons relating to substantive
fairness. It holds U.S. Steel accountable for its alleged non-compliance at the three
facilities at issue and includes not only penalties and remedies for alleged past
violations, but also SEPs to better the community in the present and future.
Furthermore, the proposed Consent Decree holds U.S. Steel accountable for its future
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performance through a stringent set of stipulated penalties. The proposed Consent
Decree’s enhanced monitoring and reporting requirements will improve the accuracy of
information about the nature and extent of U.S. Steel’s compliance with the Clean Air
Act and other applicable laws and permits. All of these measures will help clean the
environment and further the goals of the Clean Air Act.
Finally, I find that the proposed Consent Decree is consistent with applicable law
and the public interest. Entry of the proposed Consent Decree serves the public interest
by providing environmental benefits more quickly and at less costs than could be
achieved through litigation. The parties have been litigating this action for over four
years and it took them over two years to reach this settlement. The only likely
alternative to the proposed Consent Decree would be more complex and potentially
protracted litigation that would expend limited governmental and judicial resources,
which is a risky proposition with uncertain results, especially given the history of this
action. Furthermore, the injunctive relief required by the proposed Consent Decree,
with the anticipated consequent emissions reductions, is consistent with the primary
purpose of the Clean Air Act, to “protect and enhance the quality of the Nation’s air
resources so as to promote the public health and welfare and the productive capacity of
its population.” See 42 U.S.C. § 7401(b)(1).
I acknowledge and am sympathetic to the concerns reflected in the comments of
the Michigan citizen groups and Representative Stephanie Chang regarding additional
steps and changes to the proposed Consent Decree that they would like in order to
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protect the health of the public and the environment. While I agree that several of the
changes advocated by the commenters would be desirable in the abstract and
potentially go further to achieve the commenters goals than what is proposed in the
Consent Decree, I do not find that the absence of the suggested changes requires me to
deny the United States’ Unopposed Motion to Enter Proposed Consent Decree.
Could the agreement be different? Of course. Could it demand more from U.S.
Steel by way of a fine, for example? Again, of course it could. But making such a
demand may have caused U.S. Steel to walk away from the bargaining table and set the
parties on a course of protracted litigation. This is to say that there is no single fair and
reasonable resolution, but rather a range of them. And, in my judgment, the Consent
Decree proposed in this case is plainly within that range.
ACCORDINGLY:
The United States’ Unopposed Motion to Enter Proposed Consent Decree
is GRANTED [DE 133] and via this Opinion and Order and my signature of page 66 of
the Proposed Consent Decree, the Consent Decree is hereby approved, signed, and
entered as a final judgment in this matter.
SO ORDERED.
ENTERED: March 30, 2017.
s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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